Electronic privacy advocates on Thursday weighed
in on a high-stakes legal fight over online communications, arguing
that a subpoena seeking an Occupy Wall Street protester's tweets
violates his rights to free speech and privacy.The filing from the American Civil Liberties Union, the Electronic
Frontier Foundation and Public Citizen, Inc. supports Twitter's position
that the individual, Occupy protestor Malcolm Harris and not Twitter
itself, is the owner of the tweets and thus the proper target for any
subpoena.
Manhattan Criminal Court Justice Matthew Sciarrino Jr. had earlier
ruled that Harris did not have the standing to challenge the subpoena,
which seeks personal information and all of Harris' tweets from
September 15 through December 31, 2011.Harris was one of 700 protesters arrested on the Brooklyn Bridge during a protest last October.
Prosecutors at the Manhattan District Attorney's office said they to
needed Harris' information to determine if the tweets he posted while on
the Brooklyn Bridge were "inconsistent with his anticipated trial
defense" - that the police either led or escorted protesters into
stepping into the roadway.
The case has caught the attention of privacy and free speech
advocates, who fear that if the judge upholds the District Attorney's
subpoena, it will undermine a basic tenet of Internet communications in
the era of social media: that the author, and not the company whose
services are used, is responsible for the content.
Thursday's brief argues that Harris should have standing to bring a
First Amendment challenge because the subpoena would reveal sensitive
details about him and his communications.
The motion also asserts that Harris' Fourth Amendment right against
warrantless search has been violated, because the information sought by
prosecutors would impair his right to move freely without government
surveillance.Since Twitter users increasingly rely on laptops, iPads or other
mobile devices likely to be logged into Twitter government could
"reconstruct their movements to conduct virtually twenty-four hours
surveillance of them," the motion argued.
"Twitter has a good history" of protecting its users in court, said
Ginger McCall, director of the Open Government Program at the Electronic
Privacy Information Center (EPIC). "But they shouldn't have to. The
user should be able to fight for themselves."
Thursday's motion referenced similar cases involving Google's Gmail
and Amazon.com, in which judges rejected the argument that users had no
standing to challenge demands for information.
"Everything on the Internet is held by a third party," said Susan
Freiwald, a professor of cyber law and information privacy at the
University of San Francisco School of Law, who was not involved in
Thursday's motion.
"If you were to say that the third party rule retains force on the Internet, then we would have no privacy online."